Beruflich Dokumente
Kultur Dokumente
18-3052
__________________________________________________________________
IN THE
United States Court of Appeals
for the District of Columbia Circuit
__________________________________
IN RE: GRAND JURY INVESTIGAITON
_________
ANDREW MILLER,
Appellant,
v.
Appellee.
________________________
Introduction ................................................................................................... 2
CONCLUSION ........................................................................................................ 18
ADDENDUM
PANEL DECISION
CERTIFICATE OF PARTIES AND RULINGS
i
RULE 35(b) STATEMENT
appointed because he is a “principal officer” and thus was required to be—but was
not—appointed by the President with the Advice and Consent of the Senate.
inferior officer because he was required to be —but was not— appointed by then-
Attorney General Jeff Sessions, the “Head of Department,” rather than by Deputy
the constitutional scheme.” Edmonds v. United States, 520 U.S. 651, 659 (1997).
1
I. SUGGESTION OF MOOTNESS
Introduction
It is black letter law that federal courts must be satisfied that a case or
controversy exists “through all stages of federal judicial proceedings, trial and
appellate.” Lewis v. Cont’l Bank Corp., 494 U.S. 472, 477-78 (1990); Preiser v.
Newkirk, 422 U.S. 395, 401 (1975) ("an actual controversy must be extant at all
stages of review”); Alvarez v. Smith, 558 U.S. 87 (2009); Coal. of Airline Pilots
As will be discussed, events that occurred during the course of this appeal
render this constitutional challenge to the grand jury subpoena issued by the
Special Counsel to be no longer a live controversy, and may not have been so
First, after this case was argued on November 8, 2018, but while it was sub
judice, the Special Counsel indicted Roger J. Stone on January 25, 2019. The
general rule is that a grand jury may no longer be used to obtain evidence from
Second, after the decision was rendered in this appeal on February 26, 2019,
but while the mandate was withheld to allow for the filing of the instant petition,
Special Counsel Mueller completed his investigation and issued his final report to
2
the Attorney General on March 22, 2019. Thus, no further indictments are
expected. Mr. Stone’s prosecution and this case will now be handled by the U.S.
Attorney’s Office instead of the Special Counsel’s Office, which originally issued
whether this case continues to be a live controversy before this Court exercises its
judicial power to adjudicate the instant petition for rehearing and suggestion for
the mandate, should it deny the petition, while further review in the Supreme Court
is sought. Alternatively, the Court may determine that vacatur of its opinion and
judgment may be warranted. See United States v. Munsingwear, Inc., 340 U.S. 36
(1950).
1. In mid-May 2018, Mr. Miller, a former part-time aide to Mr. Stone during
the 2016 Republican National Committee convention handling his media schedule
agents who appeared without notice at his mother’s home in St. Louis, Missouri.
For approximately two hours, Mr. Miller answered all their questions to the best of
his knowledge. At the end of the interview, the FBI gave Mr. Miller a subpoena
3
from the Special Counsel for any documents related to Mr. Stone and to testify
agreed with court approval to limit the document search to any documents related
to Mr. Stone and WikiLeaks, Julian Assange, and Guccifer 2.0. All such
documents were turned over to prosecutors on June 25, 2018. The subject of his
grand jury testimony, then scheduled for June 29, 2018, presumably would cover
the same subject matter as the FBI interview and the documents requested, even
3. While this appeal of the contempt order was pending sub judice, Roger
Stone was indicted on Friday, January 25, 2019. He was charged with providing
Assange, and other witnesses, but there were no charges for colluding or
coordinating with Russia regarding that country’s interference with the 2016
4. Later that afternoon, undersigned counsel for Mr. Miller inquired of the
Special Counsel whether, in light of the indictment, the grand jury still needed his
testimony regarding the subject matter, if it ever did, and whether this Court should
be so advised with a FRAP Rule 28(j) letter. In particular, counsel noted the
4
Justice Department’s policy1 and relevant case law regarding the proper use of the
The grand jury's power, although expansive, is limited by its function toward
possible return of an indictment. Costello v. United States, 350 U.S. 359,
362 (1956). Accordingly, the grand jury cannot be used solely to obtain
additional evidence against a defendant who has already been
indicted. United States v. Woods, 544 F.2d 242, 250 (6th Cir. 1976), cert.
denied sub nom., Hurt v. United States, 429 U.S. 1062 (1977). Nor can the
grand jury be used solely for pre-trial discovery or trial preparation. United
States v. Star, 470 F.2d 1214 (9th Cir. 1972). After indictment, the grand
jury may be used if its investigation is related to a superseding indictment of
additional defendants or additional crimes by an indicted defendant. In re
Grand Jury Subpoena Duces Tecum, Dated January 2, 1985, 767 F.2d 26,
29-30 (2d Cir. 1985); In re Grand Jury Proceedings, 586 F.2d 724 (9th Cir.
1978).2
5. Since the subpoena issued to Mr. Miller was for the purpose of obtaining
evidence related to Mr. Stone’s connection with WikiLeaks, Julian Assange, and
Guccifer 2.0, it would appear that the Special Counsel would no longer need Mr.
Miller’s testimony regarding that subject matter. Nevertheless, the next business
1
The Special Counsel is required to comply with all Department of Justice policies
and directives. 28 C.F.R. 600.7(a).
2
See also United States v. (Under Seal), 714 F.2d 347, 349 (4th Cir. 1983)
(“[P]ractices which do not aid the grand jury in its quest for information bearing on
the decision to indict are forbidden. This includes use of the grand jury. . . as a
means of civil or criminal discovery.”); United States v. Moss, 756 F.2d 329, 332
(4th Cir. 1985) ("universal rule that prosecutors cannot utilize the grand jury solely
or even primarily for the purpose of gathering evidence in pending litigation.").
5
day, Monday, January 28, 2019, undersigned counsel was advised by the Special
Counsel’s office that it believed the case to be a live controversy since the grand
jury was still active, though it was not apparent whether the grand jury or its
testimony.3
declinations, and finding that no conspiracy or coordination took place between the
Trump campaign or any aides associated with the campaign and Russia regarding
interference with the 2016 campaign or hacking the emails of Hillary Clinton or
3
Notably, while the mandate was stayed as is the usual practice until 7 days after
the time for the filing a petition for rehearing had expired or after disposition of
any timely filed petition (45 days from the decision, or April 12), the Special
Counsel had the right to ask the Court to issue the mandate ever since February 26
if Mr. Miller’s testimony was needed. The Special Counsel declined to do so.
4
See Attorney General William P. Barr Letter to Congress, March 24, 2019.
https://www.nytimes.com/interactive/2019/03/24/us/politics/barr-letter-mueller-
report.html?module=inline#g-page-1.
5
Devlin Barrett and Matt Zapotosky,“Mueller report sent to attorney general,
signaling his Russia investigation has ended” Washington Post (Mar. 22, 2019).
6
Cinderella’s carriage that turned into a pumpkin at midnight, Special Counsel
since the issuance of the subpoena in question over nine months ago, strongly, if
longer required nor can be legally obtained. Thus, this Court should invite the
the instant petition for rehearing and suggestion for rehearing en banc and any
After scores of pages devoted by the parties to briefing in-depth the issue of
whether the Special Counsel is a superior or inferior officer, not to mention the 41
pages with 21 footnotes penned by Chief Judge Howell on that issue in her
voluminous 92-page opinion (Mem. Op. 26-66), the panel gave short shrift to this
argument in just two pages (Op. 7-9). The panel declared that “[b]inding precedent
https://www.washingtonpost.com/world/national-security/mueller-report-sent-to-
attorney-general-signaling-his-russia-investigation-has-
ended/2019/03/22/b061d8fa-323e-11e9-813a-
0ab2f17e305b_story.html?utm_term=.6d83a9475bca
7
instructs that Special Counsel Mueller is an inferior officer under the
Branch officer who was appointed with the advice and consent of the Senate.”
Ergo, he is an inferior officer, even though the regulations currently remain extant
and binding. This conclusion is erroneous for reasons argued at length in Miller’s
6
The panel erroneously refers to the “Office of Special Counsel regulations.” Op.
at 8. There is no “Office of Special Counsel.” The regulations merely provide for
rules governing the conduct of a Special Counsel who may be appointed by the
Attorney General on a case-by-case basis. 28 C.F.R. 600, et seq. The pleadings
and process in these cases are filed and issued by the “Special Counsel Office.”
This may seem like a trivial distinction in nomenclature, but as some have argued,
because there is no continuous office, the Special Counsel may be a “mere
employee” unlawfully exercising “significant government authority.” See Seth
Barrett Tillman & Josh Blackman, Is Robert Mueller an “Officer of the United
States” or an “Employee of the United States”?, Lawfare: Hard National Security
Choices (July 23, 2018). https://www.lawfareblog.com/robert-mueller-officer-
united-states-or-employee-united-states
8
The “binding precedent” cited by the panel for their summary conclusion
was Edmond v. United States, 520 U.S. 651, 663 (1997) and In re Sealed Case, 829
F.2d 50 (D.C. Cir. 1987). But if the test for inferior officers were simply that they
may be answerable to a superior, then all officers below the Attorney General,
including the Deputy Attorney General, Solicitor General, and Assistant Attorneys
General, as well as all other sub-cabinet positions in all other departments, would
all be classified as “inferior officers,” leading to the implausible conclusion that the
Edmond when he said “[i]t does not follow, however, that if one is subject to some
necessary for inferior officer status, but not sufficient to establish it.” Id. at 667
(Souter, J., concurring in part and concurring in the judgment) (emphasis added).
More troubling, the panel failed to cite this Court’s more recent opinion in
Intercollegiate Broad. Sys., Inc. v. Copyright Royalty Bd., 684 F.3d 1332, 1337
(D.C. Cir. 2012), which applied the three Edmond factors for determining principal
officer status. As Miller amply demonstrated in his briefs, the enormous powers
7
See generally Steven G. Calabresi & Gary Lawson, “Why Robert
Mueller’s Appointment As Special Counsel Was Unlawful,” Northwestern Public
Law Research Paper No. 19-01 (last update Mar. 9, 2019) (forthcoming Notre
Dame Law Rev.) https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3324631.
9
wielded by Special Counsel Mueller as a U.S. Attorney-at-Large exceeded the
powers wielded by the Copyright Royalty Judges that this Court found to
constitute principal officers. Opening Br. 19; Reply Br. 20, 22. If setting royalty
rates “can obviously mean life or death for firms,” id. at 1338, then returning
In short, either the panel or the full Court should rehear this appeal because
III. The Panel Erroneously Concluded That 28 U.S.C. Sections 515 and
533(1) Authorize the Appointment of a Private Attorney to be Special
Counsel
As it did with disposing of Miller’s Principal Officer argument, the panel held
that the issue of whether 28 U.S.C. 515 and 533(1) authorized the appointment of a
Special Counsel was decided by the Supreme Court in United States v. Nixon, 418
U.S. 683 (1974) and this Court’s decision in In re Sealed Case, 829 F.2d 50 (D.C.
Cir. 1987). Op. 9-12. It did so without applying any of the well-settled rules of
statutory construction employed by the Supreme Court and this Court as argued at
10
length by Miller and Amicus Concord Management, LLC.8 Moreover, the panel’s
reliance on those two cases as dispositive holdings, which themselves were also
bereft of any analysis of the two statutory provisions, was misplaced. Accordingly,
United States v. Nixon. The panel cited to one sentence in Nixon that Congress
vested in the Attorney General “the power to appoint subordinate officers to assist
him in the discharge of his duties. 28 U.S.C. 509, 510, 515, 533.” As amply
demonstrated in our briefs, and undisputed, that statutory issue was neither briefed
nor argued by the parties before the Court but instead was assumed. The panel
nevertheless rejected the argument that this was dictum, and further relied on this
Court’s decision in United States v. Fields, 699 F.3d 518, 522 (D.C. Cir. 2012), for
the proposition that “carefully considered language of the Supreme Court, even if
statutory provisions in question were not considered by the High Court at all, let
In re Sealed Case. The panel similarly relied on this Court’s Sealed Case,
which, like Nixon, also did not analyze the two provisions in question (indeed, 28
8
See Opening Br. 7-13; Reply Br. 2-13; Concord Br. 2-13 See also Calabresi &
Lawson, supra, at 16-54.
11
U.S.C. 533(1) was nowhere mentioned), and which held that while Section 515
delegation at issue here.” Op. 11. While the Attorney General can “delegate” his
powers only to those already inside the Department, the panel rejected Miller’s
argument to that effect, holding that the Court in Sealed Case “assumed the
independent counsel did not already hold a position inside the Department” when
Because this Court in Sealed Case candidly acknowledged that Section 515 does
“clear statement” as Miller argued below and on appeal. The panel’s refusal to
consider that rule of statutory construction, purportedly because it was only raised
in “cursory” fashion and “forfeited,” Op. 12, was factually and legally erroneous.
Miller repeatedly and expressly asserted the need for a clear statutory
language that implicate Article II’s appointment authority in his opening brief. See
12
overcome [Art. II’s default rule of appointments with Senate confirmation] with a
statute that clearly confers appointment authority on the President, the courts, or
the “Heads of Departments”) (emphasis in original); and further cited other statutes
treatment of the need for a clear legislative statement since it countered that the
language of Section 533 and 515(b) “would easily satisfy it.” Govt Br. 40, n.8.
Considering the voluminous briefing by the parties on the meaning of these two
Moreover, the cases cited by the panel for waiver are clearly inapposite. The panel
was not called upon to do “counsel’s work” as it was in New York Rehab. Care
Mgmt., LLC v. NLRB, 506 F.3d 1070, 1076 (D.C. Cir. 2007), inasmuch as Miller
and amicus plumbed the depths of the rules of statutory construction to divine the
meaning of the two statutes, and argued that a clear legislative statement is
required. There was no more “counsel’s work” for the Court to do other than to
either agree with the Special Counsel that the language of two statutory provisions
“easily satisfy” the clear statement rule or, as Miller argued, they do not.
IV. The Panel Erred In Ruling That Attorney General Jeffrey Sessions
Was Not the “Head of Department” under the Appointments Clause
Even if the panel correctly concluded that there is statutory authority for the
13
principal officer, the panel erred by concluding that he was lawfully appointed by
Sessions. This is true even assuming, arguendo, that the recusal of Attorney
The panel erred by ruling that the Attorney General’s statutory recusal
caused him to no longer be the “Head of the Department” for purposes of the
Appointments Clause. In doing so, the panel confused Sessions’ recusal from the
General, acting or otherwise, to be in charge of the matter.” Op. 14. That is neither
From the time of Sessions’ recusal from the Russia investigation on March
General Dana Boente and then by Deputy Attorney General Rod Rosenstein. They
were “in charge of the matter” during Sessions’ recusal, whether they were
14
wearing an “Acting Attorney General” hat or executing their duties as Deputy
the DAG under 28 U.S.C. 510 (“Delegation of Authority”) to supervise the Russia
investigation if that was deemed necessary. The district court also opined that, as
could have delegated his Article II appointment authority to the DAG pursuant to
The Special Counsel did not rely on the Section 510 argument below or in
this Court, and probably for good reason. Attorney General Sessions, as the Head
to appoint inferior officers (as opposed to delegating his statutory authorities) any
more than the President could delegate his Article II authority to appoint principal
appointments in the president alone). This is true even if the president had a
conflict of interest in appointing such officer, such as the head of the General
9
The Deputy Attorney General is the “Chief Operating Officer” of the
Department, provides “overall supervision and direction to all organizational units
of the Department,” and “25 components and 93 U.S. Attorneys report directly to
the Deputy.” https://www.justice.gov/jmd/organization-mission-and-functions-
manual-attorney-general
15
Services Administration, who may be a landlord for any real property owned by
the president. Cf. Lucia v. SEC, 138 S. Ct. 2044 (2018) (SEC Commissioners, as
Head of the Department, could not delegate their appointing authority to lower-
While the panel discussed at length why the term “disability” in Section
508(a) accords with the usage of the same term in Rule 25(a) of the Federal Rules
14, it failed to address Miller’s argument that in the judicial context, the “rule of
necessity,” is more analogous to the instant case. Thus, assume there were a law
requiring the Chief Judge of a district court to re-assign a case to another judge
where the originally assigned judge was recused. If the Chief Judge herself had a
conflict in a case originally assigned to her, she would still have the authority and
duty to “appoint” another sitting judge to hear the case and still be true to her
recusal by not deciding the case. See Opening Br. 41 citing In re Leefe, 2 Barb.
Ch. 39 (N.Y. Ch. 1846) (state constitution required that the chancellor alone hear
appeals from inferior equity tribunals, and thus decide the case at hand involving a
selected by the DAG and still continue to be recused from the investigation. The
panel further ignored the Miller’s reliance on a relevant OLC opinion (Br. 43) that
16
while screening of candidates for inferior officers may be handled by subordinates,
Attorney General who was supervising the Russia investigation following Sessions
recusal, was also authorized to be the appointing authority of the Special Counsel
as the investigator; the constitution reserves that authority to the Head of the
* * * *
17
CONCLUSION
For the foregoing reasons, Miller suggests that this case may be moot
because of intervening events. If the Court is satisfied that the case is not moot,
then it should grant the petition for panel review or the petition for rehearing en
banc.
18
ADDENDUM
USCA Case #18-3052 Document #177 4854 Filed: 02/26/2019 Page 1of16
No. 18-3052
Paul D. Kamenar argued the cause and filed the briefs for
appellant.
I.
A.
The Attorney General is the head of the Department of
Justice ("the Department"). 28 U.S.C. § 503. The Attorney
General must be appointed by the President with the advice and
consent of the Senate. Id. Congress also created the position
of Deputy Attorney General, who also must be appointed by
the President with the advice and consent of the Senate. Id.
§ 504. Congress has "vested" in the Attorney General virtually
"[a]ll functions of other officers of the Department," id. § 509,
and has empowered the Attorney General to authorize other
Department officials to perform the functions of the Attorney
General, id. § 510. Congress has also authorized the Attorney
General to commission attorneys "specially retained under the
authority of the Department" as "special assistant to the
Attorney General or special attorney," id. § 515(b), and
provided "any attorney specially appointed by the Attorney
USCA Case #18-3052 Document #177 4854 Filed: 02/26/2019 Page 3of16
3
General under law, may, when specifically directed by the
Attorney General, conduct any kind of legal proceeding, civil
or criminal ... which United States attorneys are authorized by
law to conduct," id. § 515(a). Congress has also provided for
the Attorney General to "appoint officials . . . to detect and
prosecute crimes against the United States." Id. § 533(1).
These statutes authorize the Attorney General to appoint
special counsels and define their duties. See, e.g., United States
v. Nixon, 418 U.S. 683, 694 (1974).
step." Id. § 600.7(b). And the Special Counsel must notify the
Attorney General of important events in the investigation under
the Department's Urgent Reports guidelines. Id. § 600.8(b).
The regulations provide that after review the Attorney General
may conclude that a contemplated action is "so inappropriate
or unwarranted under established Departmental practices that
it should not be pursued." Id. § 600.7(b). During review, the
Attorney General is to "give great weight" to the views of the
Special Counsel. Id.
B.
The circumstances giving rise to this appeal began on
March 2, 2017, when then-Attorney General Jeff Sessions
recused himself "from any existing or future investigations of
any matters related in any way to the campaigns for President
of the United States." Press Release No. 17-237, U.S. Dep't of
Justice, Attorney General Sessions Statement on Recusal (Mar.
2, 2017). Department regulations provide that "no employee
shall participate in a criminal investigation or prosecution if he
has a personal or political relationship" with any person
"involved in the conduct that is the subject of the investigation
or prosecution." 28 C.F.R. § 45.2. Attorney General Sessions
announced in a press release that "[c ]onsistent with the
succession order for the Department of Justice," the then-
USCA Case #18-3052 Document#1774854 Filed: 02/26/2019 Page 5of16
5
Acting Deputy Attorney General Dana Boente "shall act as and
perform the functions of the Attorney General with respect to
any matters from which I have recused myself to the extent they
exist." Press Release No. 17-237. During testimony before the
U.S. House of Representatives Permanent Select Committee on
Intelligence on March 20, 2017, then-Director James Corney
confirmed that the Federal Bureau oflnvestigation ("FBI") was
investigating the Russian Government's efforts to interfere in
the 2016 U.S. presidential election, including investigating the
nature of any links between President Trump's campaign and
the Russian Government.
6
before the grand jury. Miller filed a motion to quash the
subpoenas on the ground that the Special Counsel's
appointment violated the Appointments Clause of the
Constitution, adopting by reference arguments made in a
separate case by Concord Management and Consulting LLC
("Concord Management"), which was also being prosecuted by
the Special Counsel. The district court denied the motion to
quash and held Miller in civil contempt. In re Grand Jury
Investigation, 315 F. Supp. 3d 602, 667 (D.D.C. 2018).
II.
7
Appointment of such inferior Officers, as they think
proper, in the President alone, in the Courts of Law, or
in the Heads of Departments.
A.
As interpreted by the Supreme Court, the Appointments
Clause distinguishes between "principal officers," who must be
nominated by the President with advice and consent of the
Senate, and "inferior officers," who may be appointed by the
President alone, or by heads of departments, or by the judiciary,
as Congress allows. Morrison v. Olson, 487 U.S. 654, 670-71
(1988) (quoting Buckley v. Valeo, 424 U.S. 1, 132 (1976)).
Thus, if Special Counsel Mueller is a principal officer, his
appointment was in violation of the Appointments Clause
because he was not appointed by the President with advice and
consent of the Senate. Binding precedent instructs that Special
Counsel Mueller is an inferior officer under the Appointments
Clause.
8
provisions assuring an officer's independence can render that
officer inferior. There, this court recognized that an
independent counsel was an inferior officer because his office
was created pursuant to a regulation and "the Attorney General
may rescind this regulation at any time, thereby abolishing the
Office of Independent Counsel." Id. at 56; see Morrison, 487
U.S. at 721 (Scalia, J., dissenting).
9
Appointment Order (May 17, 2017). The control thereby
maintained means the Special Counsel is an inferior officer.
See Sealed Case, 829 F.2d at 56-57. Miller's contention that
Special Counsel Mueller is a principal officer under the
Appointments Clause thus fails.
B.
The question whether Congress has "by law" vested
appointment of Special Counsel Mueller in the Attorney
General has already been decided by the Supreme Court. In
United States v. Nixon, 418 U.S. 683, 694 (1974), the Court
stated: "[Congress] has also vested in [the Attorney General]
the power to appoint subordinate officers to assist him in the
discharge of his duties. 28 U.S.C. §§ 509, 510, 515, 533." In
acting pursuant to those statutes, the Court held, the Attorney
General validly delegated authority to a special prosecutor to
investigate offenses arising out of the 1972 presidential
election and allegations involving President Richard M. Nixon.
Id
10
nonjusticiable because it was "intra-executive" in character, id.
at 689. The Supreme Court held there was a justiciable
controversy because the regulations issued by the Attorney
General gave the Special Prosecutor authority to contest the
President's invocation of executive privilege during the
investigation. Id. at 695-97. In this analysis, the Attorney
General's statutory authority to issue the regulations was a
necessary antecedent to determining whether the regulations
were valid, and, therefore, was necessary to the decision that a
justiciable controversy existed. The Supreme Court's quoted
statement regarding the Attorney General's power to appoint
subordinate officers is, therefore, not dictum. Moreover, under
this court's precedent, "carefully considered language of the
Supreme Court, even if technically dictum, generally must be
treated as authoritative." United States v. Fields, 699 F.3d 518,
522 (D.C. Cir. 2012).
11
Id. at 55.
12
Government Act, 28 U.S.C. § 593(b). But this court explicitly
declined to address whether the independent counsel's initial
appointment under the Act was valid, thereby avoiding the
need to consider any constitutional questions raised by the Act.
Sealed Case, 829 F.2d at 55- 56, 62; see Appellee Br. 34.
Therefore, this court assumed that the independent counsel did
not already hold a position inside the Department when it held
that the Attorney General's appointment of him to the Office
of Independent Counsel: Iran/Contra was valid. That analysis
applies equally to the facts of the instant case.
c.
The statutory and regulatory scheme demonstrate, contrary
to Miller's contention, that at the time of Special Counsel
Mueller's appointment, Acting Attorney General Rosenstein
was the "Head of Department" under the Appointments Clause
as to the matter on which the Attorney General was recused.
The Attorney General is the head of the Department of Justice,
28 U.S.C. § 503, and an Acting Attorney General becomes the
head of the Department when acting in that capacity because
an acting officer is vested with the same authority that could be
exercised by the officer for whom he acts, Ryan v. United
USCA Case #18-3052 Document #177 4854 Filed: 02/26/2019 Page 13of16
13
States, 136 U.S. 68, 81 (1890); Keyser v. Hitz, 133 U.S. 138,
145-46 (1890); see also Acting Officers, 6 Op. O.L.C. 119, 120
(1982).
14
Intelligence (June 13, 2017). At the time of the Special
Counsel's appointment then, the Attorney General had a
"disability" because he lacked legal qualification to participate
in any matters related to that conflict. See Russello, 464 U.S.
at 21; Webster's Third New International Dictionary 642
(1981). Under Miller's view, there could be no Attorney
General, acting or otherwise, to be in charge of the matter.
15
Still Miller maintains that Section 508 does not make the
Deputy Attorney General an "acting" officer but only
authorizes the Deputy Attorney General to perform the duties
of the Attorney General's office and the Attorney General
remains the "Head of Department" for Appointments Clause
purposes. Congress has authorized the Deputy Attorney
General to perform "all the duties of th[e] office" in case of a
vacancy, 28 U.S.C. § 508(a), such that the Deputy becomes the
"Acting" Attorney General. As to the recused matter, the
Acting Attorney General has authority to appoint inferior
officers because that is part of the authority that could be
exercised by the Attorney General. Miller's position that the
Deputy Attorney General only becomes the "Acting" Attorney
General ifthe Federal Vacancies Reform Act, 5 U.S.C. § 3345,
is triggered - and that the Act is triggered, he maintains, only
upon a complete inability to perform the functions and duties
of the Attorney General's office - overlooks that the Act
explicitly provides it is not the exclusive means to designate an
"acting" official. 5 U.S.C. § 3347(a)(l)(B). Other statutes may
temporarily authorize an officer or employee to perform the
functions and duties of a specified office. Id. Miller does not
explain why 28 U.S.C. § 508 is not such a statute that
temporarily authorizes an officer to temporarily perform the
duties of the Attorney General. See S. Rep. No. 105-250, at
15-16 (1998); see also Noel Canning v. NLRB, 705 F.3d 490,
511 (D.C. Cir. 2013), aff'd on other grounds, 134 S. Ct. 2550
(2014). Therefore, Special Counsel Mueller was properly
appointed by a head of Department, who at the time was the
Acting Attorney General.
16
through recusal on the matter, we hold that Miller's challenge
to the appointment of the Special Counsel fails. Accordingly,
we affirm the order finding Miller in civil contempt.
CERTIFICATE AS TO PARTIES, RULINGS, AND RELATED CASES
The appellant is Andrew Miller. The appellee is the United States of America.
Concord Management and Consulting LLC filed an amicus brief and presented
The rulings under review include the contempt order issued by Chief Judge
Beryl A. Howell against Mr. Miller on August 10, 2018, Case No. 18-gj-34. ECF
No. 36. Chief Judge Howell’s memorandum opinion and order entered on July 31,
2018, ECF No. 23, denying Mr. Miller’s motion to quash the subpoena, is published
C. Related Cases
The case has not previously been before this Court or any other court. There
was a related case, United States v. Concord Management & Consulting LLC, 317
F. Supp. 3d 598 (D.D.C. 2018), appeal docketed, No. 18-301 (D.C. Cir.), appeal
Pursuant to FRAP 25(d), the undersigned hereby certifies that on the 12th
day of April, 2019, he caused the foregoing Petition for Rehearing and Rehearing
the Court by using CM/ECF system. The participants in this case are registered
CM/ECF users and service will be accomplished by the appellate CM/ECF system.
The undersigned further certifies that the foregoing Petition complies with
2010 and complies with FRAP 32(a) (5)-(6) because it has been prepared with
proportionally spaced font typeface using Microsoft Word 2010 in 14-point Times
New Roman.
/s/Paul D. Kamenar
Paul D. Kamenar